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Synthesize Division Interagency Real Estate Agreements and Identify Practices for Improved Interagency Support

III. Findings and Recommendations

This section summarizes the key findings from the stakeholder interviews and workshops. It includes an identification of a number of potential opportunity areas with the existing processes, as well as several best management practices that may be adaptable for use on a wider scale. Based on these opportunity areas and best management practices, this section also provides a number of recommendations for follow-up actions and next steps to initiate further streamlining and standardization of the Interagency Transfer process and for the potential adoption of tools and technologies to support the enhanced processes.

A. Potential Opportunity Areas

During the stakeholder interviews and workshops, the participants identified a number of potential opportunity areas for improving Federal Land Transfer practices and procedures. Each of these opportunity areas is detailed below.

1. Lack of timely notification of pending transfers and not involving impacted Agency realty staff early in the process

Several interviewees and workshop participants expressed concern that Agency realty staff are often involved much too late in the process. Internal routing between and within Agencies often does not provide notification to realty/land management staff of pending project activity during the early design and NEPA stage. Thus, realty staff members who will work on the Federal Land Transfer are not integrated into the team at the start of the project. In addition, workshop participants indicated that sometimes one or more individuals at a resource Agency might be notified about a project but that due to internal communication challenges, information about the project does not always reach, in a timely way, the realty staff who will actually be involved in the Federal Land Transfer.

Transfer documents and environmental documents are often handled by separate offices, and intra-Agency coordination may not occur in a timely manner. While one part of USFS, for example, may know of a pending project, the resident forester who will need to assist with the Federal Land Transfer may not become aware of this request immediately. The resident forester may only be notified about the need for the Federal Land Transfer when it becomes a high-priority item, with an immediate approval needed due to shifts in funding or other external factors. This type of delay in notification can affect the ability of USFS or other Agency staff to plan for and take timely action due to limitations in staff resources.

2. Difficulty in identifying the appropriate Agency contacts at both the headquarters and field levels to address Federal Land Transfer issues

A number of study participants expressed concerns about the difficulties of identifying appropriate contacts within various partner Agencies. This difficulty in finding the right contacts is further complicated by both the low-volume nature of Federal Land Transfers in many parts of the country and the outdated guidance materials that are inconsistent with an Agency’s current organizational structure. This difficulty in identifying contacts also increases the complexity of ensuring early involvement of the right Agency real estate staff when a Federal Land Transfer is anticipated.

There is a clear need for Agency staff to be able to identify Federal and state counterparts as points of contacts on an ongoing basis instead of having to find the appropriate person within an Agency on a project-by-project basis. This could include identifying specific individuals for each project as part of a formalized project/stakeholder team, when necessary.

3. Difficulty in easily finding and accessing resource material and guidance about the Federal Land Transfer process

A general, uniform deficiency that was identified in the workshops is the lack of ready access to information resources regarding Agency organization, roles, and documentation or guidance. There is currently no community of practice or other centralized repository/knowledgebase on Federal Land Transfers. This lack of an updated, centralized repository is particularly challenging for staff in the eastern United States where Federal Land Transfers occur less frequently and where a staff member may prepare a Federal Land Transfer only once or twice in a career.
Many existing resources, both hard copy and on the Web, are not easy to find. Especially difficult to find are the hard copy publications of the last decade, such as the Attorney's Manual For Public Land Transfers and Federal Condemnations, which contains the process outlines and examples sought by field practitioners. Unfortunately, this particular document was published in limited quantities and is no longer available. It was also never made part of any digitized, Web-accessible library.

Likewise, the resource material about Federal Land Transfers that has been made Web accessible can be difficult to find within various Agency Web sites. Most Agency Web sites contain either outdated material or no specific content relevant to the Federal Land Transfer process. Both the links to the guidance and the actual content need to be reviewed to ensure that they are current and easily accessible. Some of the guidance materials for the Resource Agencies and for FHWA are buried too deeply into the various Agency Web sites. This makes the information very difficult to access if you are less familiar with the process or somewhat unsure of specifically what material you are looking for.

This is one key area where the transportation community would benefit if greater attention were applied to creating an exchange of information both within and between Agencies. Such a centralized repository could include Agency contact lists, national MOUs/MOAs, samples for regional or local MOUs/MOAs, standardized templates for various Agencies, or requirements and detailed processes to help guide less-experienced resources. Study participants from FHWA, the various Federal Resource Agencies, and the state departments of transportation all requested an easy-to-access information resource for identifying the documents, stipulations, and conditions that have been used successfully elsewhere in order to avoid having to create new material each time a transfer request is made.

In many parts of the country, especially in the eastern United States, the need to have this kind of central repository of information is vital because the number of Federal Land Transfers processed in any given year is more limited. It is where only one or two such actions may be required over several years that access to an information repository can yield the highest return. It is the staff members who are least familiar with the process that will require the most help in preparing and processing the documents required for a Federal Land Transfer.

4. Communication challenges between the various Agencies or between different units of the same Agency involved in the Federal Land Transfer process

Communication between Agencies and, to some extent, within the same Agency can be extremely cumbersome. Some reasons for these communication difficulties include the following:

5. Limitations with existing national MOUs and MOAs

Study participants provided mixed messages regarding the national MOUs with some participants indicating they continue to serve their intended purposes as is while other participants thought they required revision. These comments were made about the 1998 MOU between FHWA and USFS, as well as the 1981 MOU between FHWA and BLM. Many USFS representatives thought that the 1998 MOU did a good job of providing a broad set of guidelines and establishing a consistent framework for executing Federal Land Transfers, while the BLM representative felt the 1981 national MOU was still useful as it set timelines, roles, and responsibilities, and had less discretionary items built into it.

Some of the challenges or limitations that participants identified with the existing MOUs/MOAs include the following:

6. A number of highways still require easements to be prepared and recorded to perfect title

There appears to be a significant number of cases nationally where a Letter of Consent has been executed and the road has been built, but the actual easement deed remains unrecorded. As a result, there is sometimes no record of rights existing when maintenance is required. Cleaning up these situations as part of a new transfer process creates an additional resource burden and can unnecessarily lengthen the Federal Land Transfer process.

B. Best Management Practices

The detailed stakeholder interviews and the participants in the stakeholder workshops identified a number of techniques currently utilized in one or more regions or states for optimizing the Federal Land Transfer process. Some or all of these techniques may have wider applicability nationally as a tool to help streamline and standardize the Federal Land Transfer process. These best practices included the elements detailed below.

1. Using a centralized and/or dedicated resource for processing Federal Land Transfers to provide a central point of contact as well as to allow an individual to develop specialized knowledge about the transfer process

The use of dedicated resources appears to be quite successful in processing Federal Land Transfers in states that have a higher volume of transfers and/or in which it is believed that the complexity of the process warrants having the work done by resources who have specialized expertise in Federal Land Transfers. Three examples are the Wyoming Department of Transportation (WYDOT), the Virginia Department of Transportation (VDOT), and the New Mexico State Department of Transportation (NMDOT).

As a function of overall program size, WYDOT has an especially high volume of Federal Land Transfers, and these transfers are processed by a single point of contact who works closely with their Federal Agency counterparts. NMDOT also has a reasonable number of Federal Land Transfers. NMDOT also processes these requests through centralized resources, experienced with the process.

At VDOT, all right-of-way acquisition activity, with the exception of Federal Land Transfers, is decentralized at the district level through nine district right-of-way units across the Commonwealth of Virginia-a specialized resource based in the central office in Richmond handles the Federal Land Transfers. Part of the rationale for the centralization of this capability at VDOT is the complexity of the process; the number of different Federal Agencies with which VDOT may deal, especially in the suburbs of Washington; and the fact that any one district might not handle enough transfers to gain significant expertise in processing them.

2. Developing detailed documentation of the procedures for executing a Federal Land Transfer and providing these procedures in a format that is easily accessible to other Agency staff

One example of these detailed procedures is the Agency-specific templates and process guidelines that have been developed by WYDOT as both documentation and a knowledge-transfer tool. Another example of this type of procedure manual, is the United States Postal Service (USPS) Real Estate Manual, which contains detailed guidance and directions on the various steps required to prepare and process different documents. The USPS Real Estate Manual was mentioned by several different workshop participants as an excellent example of the type of guidance material, which would be appropriate for the Federal Land Transfer process.

3. Interagency initiatives to establish a community of practice and promote sharing of information needed to support multi-Agency initiatives

There are several Interagency initiatives, such as the General Services Administration’s Government-wide Real Property Information Sharing (GRPIS) Program, which seeks to encourage and facilitate the sharing of real property information among Federal Agencies so that better asset management decisions can be made. The program encourages the formation of real property councils within major Federal communities nationwide. As of December 2004, GRPIS councils have been established in: Puget Sound, WA; New England; South Florida; Arizona; New Mexico; Kansas City, KS/MO; the Front Range of Colorado; Atlanta, GA; the San Francisco Bay Area; Pittsburgh, PA; and Portland, OR.

GRPIS participants are working-level Federal real property professionals, including realty specialists, community planners, facility managers, interior designers, contracting officers, and other interested people.

The GRPIS Program provides the following:

The GRPIS Team conducts one-on-one site visits with the local Federal real property professionals to introduce the GRPIS program and to facilitate the establishment of a local GRPIS council. Once established, the GRPIS Team supports the local councils by facilitating the sharing of real property information and providing planning and administrative support for council meetings. It also supports a ListServ e-mail service that provides participants with frequent updates on real property issues, training opportunities, information sources, and meeting announcements.

4. Establishment of a dedicated and focused project team that remains involved throughout the life cycle to expedite the Federal Land Transfer process and troubleshoot any issues that may arise

This focused team should include realty staff as team members as early in the process as possible when it is anticipated that a Federal Land Transfer will be required.

This type of multidisciplinary team is most common on larger, more complex, or highly visible projects. One example discussed in our workshops was the Hoover Dam Bypass, which involved the FHWA Central Federal Lands Highway Division, the Arizona and Nevada departments of transportation, and a number of state and Federal Resource Agencies. On the Hoover Dam Bypass project, there was a committed project team of personnel from the several states and Federal Agencies who stayed focused throughout the project life cycle and found ways to acknowledge issues and deliver needed transfers on time. For such high-priority projects, the use of a dedicated point person and a team approach was identified as a successful method to ensure on-schedule completion of needed actions.

The key is how to leverage this kind of focused effort and multidisciplinary involvement and input on an early and ongoing basis for more "routine" projects. This is especially challenging given the current resource constraints of Agencies, However, Dye Management Group, Inc.’s recent experience working with several state departments of transportation and their resource agency partners on environmental streamlining opportunities suggests that a small amount of time invested in the process up front working together will save significant time later. This early involvement emphasis is also being incorporated into the overall project development process by the Louisiana Department of Transportation and Development (DOTD) for all of the various disciplines including Construction, Real Estate, and Utilities to ensure as complete a scoping and risk assessment process as possible in the early stages of the project lifecycle.

5. Establishing regional or local MOUs or MOAs to supplement any national agreements

Whereas the national agreements may be strategic in nature, providing a framework for cooperation between Agencies, the regional or local MOU/MOA needs to provide an appropriate level of detailed operational procedures to facilitate the actual hands-on execution of the process at the local level. The intention is to have a guidance process that is consistent with national objectives but detailed enough to provide day-to-day direction and flexible enough to be customized to meet specific local requirements. One example of this type of local MOU/MOA is the agreement between WYDOT, FHWA, and USFS; another example is the MOU between WYDOT, FHWA, and BLM. Additional examples of this type of MOU/MOA were also identified by workshop participants in Arizona, Kentucky, Ohio, and Oregon.

6. Development of an MOU/MOA to address recording of easements on existing highways

The FHWA California Division, CalTrans, and USFS entered into an MOU in December 2001, with the express intent to advance recording easements on existing stretches of highway through USFS lands where no deed of record currently exists. The intent was to perfect a right-of-way interest in the highway so that routine maintenance could proceed when needed without having to obtain permits and other entry documents each time such maintenance was required. Based on discussion at the Sacramento, Calif., workshop with representatives of all three Agencies, the consensus is that, to date, this MOU has worked well.

The workshop participants identified this Recording Easements MOU as an example of a best practice for the specific niche it was designed to achieve. Implementation of the MOU has led to better communication and coordination between the three parties involved in the MOU and has provided a structured way to address a problem complete with development of annual work plans, timelines for action, and a disputes escalation process.

7. Providing regular opportunities that are not project specific for Interagency communication to discuss issues with the Federal Land Transfer process

Venues or processes are required where the various Agency partners can address both what is working well and what can be improved in the process itself, independent of specific issues on a particular project. An example of this type of forum is the annual meeting between the various Agencies sponsored by WYDOT. This annual meeting is utilized to discuss issues with the transfer process and has led to changes in operational procedures. Another example of this open communication process identified during the workshops was the frequent communication and close working relationship at the local level between USFS and Minnesota Department of Transportation staff.

8. Funding of resource Agency positions to allow for focused effort on Federal Land Transfers

A number of state departments of transportation are funding positions in both state and Federal Resource Agencies to help ensure appropriate staffing levels and turnaround times by Resource Agencies for required involvement in the NEPA process and for permit processing within agreed time frames. For example, the North Carolina Department of Transportation, in conjunction with the North Carolina FHWA Division office, funds positions in the local USFWS office, the local EPA office, the North Carolina Division of Water Quality, the North Carolina State Historical Property Office, and the North Carolina Fish and Wildlife Resources Agency, among others.

This concept has now been adapted to the Federal Land Transfer process in some states that have higher volumes of Federal Land Transfers, including Arizona and Wyoming.

C. Recommended Next Steps

Based on both the potential opportunity areas and the best management practices identified by interviewees and workshop participants, the Dye Management Group, Inc. project team is proposing a number of recommended next steps for streamlining and standardizing the Federal Lands Transfer process. These recommended actions are detailed below.

1. Enhance communication and coordination between and within Agencies

This recommendation includes providing regular opportunities that are not project specific for Interagency communication to discuss issues with the Federal Land Transfer process. These meetings could be held on an annual or semi-annual basis within a given state or region. Another action to enhance communication between Agencies includes establishing and maintaining contact at the local level between state transportation Agency staff and specific resource Agency staff (for example, forest supervisors). Other potential steps include scheduling preliminary meetings to discuss upcoming projects and jointly setting work schedules and forming Interagency project teams to address priority project needs.

2. Encourage early involvement in the project development life cycle of all impacted Agency realty resources

Early involvement in the project development life cycle of all impacted Agency realty resources should be encouraged when the potential need for a Federal Land Transfer is anticipated. This early involvement could include the following:

Key steps that are required to help ensure that this early involvement takes place include the following:

3. Update existing national MOUs and MOAs

This recommendation involves reviewing the existing national MOUs and MOAs to update guidance to remove conflicts and inconsistencies between national MOUs and specific Agency policies, including identifying which laws, provisions, and NEPA requirements have the lead in various situations. For example, as noted previously, the 1998 MOU between USFS and FHWA needs technical corrections to clarify the difference between deed conditions and construction stipulations and clearly reserve to the USFS timber and mineral rights, and the authority to exclusively grant additional uses within the easement.

4. Develop a regional MOU/MOA template

To supplement the national MOUs/MOAs and provide for more detailed operational procedures, a template regional agreement should be developed by a multi-Agency team and made available for use nationally. This regional MOU/MOA template would provide a general framework for an MOU/MOA with ideas for content but with flexibility to develop the specific language and documents that will vary by region and State.

This template regional agreement should be developed at a sufficient level of detail to provide the operational guidance that is absent in the more strategic national MOUs, while retaining sufficient flexibility to allow the templates to be customized to meet specific local situations. This sample MOU/MOA should include a national Interagency standard deed template and set of supporting procedures. This sample regional MOU/MOA template should support Federal Land Transfers on both Federal-Aid and Federal Lands highways. It should include the following:

Study participants indicated that the multi-Agency MOUs would provide a way to document institutional knowledge and reduce the learning curve for new employees when more experienced employees leave the Agency. It was also thought that a comprehensive MOU up front would reduce the time needed for processing Letters of Consent, thus better optimizing resources.

5. Provide sample deeds which can be utilized as a model to develop standard local deed templates

In conjunction with the proposed regional MOU/MOA, a number of sample deeds should be collected and published which are considered to represent best practices in terms of format and process by one or more of the Agencies.

These sample deeds can then be utilized on a local basis as a model to develop a standard local deed template that is acceptable to all of the impacted Agencies in terms of format and process. This standard local template would do the following:

Key questions and concerns identified by the interview and workshop participants that will need to be addressed in both selecting sample deeds as models nationally and by local Agencies in implementing a standard deed template include the following:

To establish the inventory of sample deeds, the following steps are proposed:

6. Establish a Web-based portal for resource material related to Federal Land Transfers where guidance documents and other information can be shared and accessed

This Web-based portal for Federal Land Transfer information should include the following elements:

This Web portal should be designed to allow easy and regular maintenance to keep the information up to date. In addition, the study participants also suggested that there needed to be an easy way to document best practices and case studies on an ongoing basis in order to continue to expand the amount of information available through the and to capture the intellectual capital of existing staff before they retire or leave their Agencies. One suggestion, for example, was to capture and provide access to entire case files for particularly complex or specialized cases.

Exhibit III-1 provides a conceptual schematic of the proposed web portal.

Exhibit III-1: Conceptual Design of Federal Land Transfer Web Portal

Screenshot of a proposed web portal for the Federal Interagency Land Transfer Information System.

One potential location for this new Web portal would be within the Web pages maintained by the FHWA Office of Real Estate Services because Federal Land Transfer requests for the Federal-Aid program originate within the states and the Federal-Aid Division offices remain the state Agencies’ main point of contact. An alternative would be to consolidate the information under the Federal Lands Highway Division (FLH) sites because they also work with and for the various Resource Agencies, especially the USFS. Technical information on developing plans, property descriptions, and basic transfer documents is already in place on FLH’s Web pages and could serve as reference points for the state departments of transportation seeking particulars regarding document preparation.

7. Evaluate increased utilization of centralized and/or dedicated resources for processing Federal Land Transfers

Federal Land Transfers are highly complex transactions. Yet, the volume of these transactions in many areas is very low, thus limiting the potential for individual staff from either state departments of transportation or Resource Agencies to gain any significant experience in processing Federal Land Transfers. To mitigate this lack of hands-on experience, the potential centralization or regionalization of Federal Land Transfers should be evaluated. Such centralization and specialization has proven to be successful in several state departments of transportation such as at VDOT, where a group of central office staff members has developed deep expertise in the Federal Land Transfer process and an extensive network of contacts with staff in a variety of Federal Agencies.

This centralization/regionalization could take several different forms:

8. Establish a model regional MOU based on the 2001 California MOU to strengthen procedures for ensuring the recording of deeds on a go-forward basis

One issue identified in several of the workshops was the existence of roads through Federal Lands that are not covered by recorded highway easements. Based on the information gathered in this study, this would appear, to some extent, to be an issue on a national basis. To address this issue, USFS, FHWA, and CalTrans developed an MOU in 2001. This MOU seeks to identify, over a period of years, those routes where documents need to be prepared to perfect the title to the roads currently traversing Federal Lands and to set annual schedules for preparing the necessary documents.

Based on the success to date of the California MOU, it is recommended that a model regional MOU be created and made available for use nationally, using the California MOU as a baseline. Implementation of this type of MOU on a national basis will help to clean up the recording of past easements in order to perfect title, reduce complications of obtaining right-of-entry to perform ongoing maintenance, and simplify the process for obtaining future Federal Land Transfers.

9. Develop an overview workshop on the Federal Land Transfer process

A one-day overview workshop on the Federal Land Transfer process should be developed. This workshop would introduce the overall process and explain for participants the newly developed regional MOU and other elements of the Web portal recommended in this report. This workshop material should be developed to allow flexibility in how it is taught, including use as a stand-alone program or as an add-on module to existing Agency training such as BLM’s or USFWS Realty Academy. The workshop material should also be made Web-ready and included as a component of the recommended Web portal.

Updated: 9/5/2014
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